Senior partner responds to legal reform proposals

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Senior partner responds to legal reform proposals

19th November 2010

Proposals for the reform of civil litigation, published this week, have sparked a mixed response from members of the legal profession.

Kieran Maguire, senior partner with Fentons Solicitors LLP, said that while politicians from all parties seem very keen on the proposals - believing they will reduce the volume and cost of litigation, while at the same time allowing easier access to justice - he believes that lawyers on both the defendant and claimant side increasingly do not share their enthusiasm.

"The reforms are largely an attempt to give effect to the earlier proposals of Lord Justice Jackson," said Kieran, a vastly experienced litigator with more than 20 years' experience and a member of APIL (Association of Personal Injury Lawyers) and the Law Society Personal Injury Panel. "Some of the proposals we will clearly welcome, such as the ten per cent increase in damages for claimants, although this will in no way compensate for the lack of increases over the last ten to fifteen years."

"However, we cannot support the suggestion that the recovery of success fees and premiums from defendants be abolished," he said, "and instead is replaced with a system whereby claimant firms will be allowed to deduct these from client damages - up to a threshold of twenty five percent of the award. This firm is proud of the role it has played over the last twelve years in pioneering the idea that lawyers should guarantee personal injury claimants keep one hundred percent of their damages.

"The idea that we will return to a system where lawyers deduct a good proportion of their fees from the clients' damages is a hugely retrograde step.

"When Conditional Fee Agreements were implemented in the mid-90s, law firms were allowed, as is proposed now, to deduct up to twenty five percent of damages to pay success fees and premiums," said Kieran. "Many vulnerable clients and communities were preyed upon by unscrupulous accident management companies who took a higher proportion than twenty five percent of the award. It is precisely this model that is now being dusted down and proposed as a brave and innovative approach."

Kieran said the proposals will once again allow unprincipled organisations to grab clients' damages and will undermine the confidence of the consumer in the civil justice system, and in particular in those who work within it.

He added that while the suggestion of introducing qualified 'one-way costs shifting' - whereby losing claimants will only pay certain costs in exceptional circumstances - was on the face of it good news, as it removed the risk of claimant's facing costs orders, this could actually increase the number of cases going to trial, contrary to the purpose of the reform.

"This point appears lost on some government ministers," said Kieran. "But clearly if there is not the deterrent of an adverse costs order at trial, huge numbers of claimants - particularly in cases involving clinical negligence, serious injury and industrial disease - will pursue their cases to trial. If the proposals proceed as currently drawn we will likely see an explosion of litigation and the courts will be simply unable to cope. The costs of defending litigation will place a great burden on the NHS and the government and its advisers will find that the law of unintended consequences has delivered exactly the opposite of what they set out to achieve."

The proposals also include a recommendation to withdraw Legal Service Commission funding for most categories of legal action including clinical negligence, matrimonial cases, housing litigation and welfare benefits.

"The abolition of LSC funding for clinical negligence cases and for other areas of work is an unjustified penny-pinching exercise that will, in some cases, leave the most vulnerable without effective legal representation," said Kieran.

"In many parts of the country, there are very few firms who specialise in this work and those that do don't always have the financial power to fund substantial disbursements investigating, for example, a complex birth case where a child has suffered disability. The abolition of LSC funding in clinical negligence cases may, to give just one example, lead to families of children with disabilities being unable to seek access to justice," he said.

"Only in the strongest cases will small law firms take on the most complex cases and invest substantially in their investigation."

How can Fentons Solicitors help?
Fentons Solicitors is experienced in handling claims relating to all types of personal injury. If you think that you have a case or require further information, contact Fentons on 0800 019 1297 or fill in the online claims questionnaire.

Source - Ministry of Justice